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FAQ: How is Custody Determined When a Child’s Parents Die?

Jan. 22, 2020

The death of a parent or both parents is always a tragic and devastating loss, and never more so than when the surviving family member is a child. Not only have they suffered a tremendous loss that they must sort through emotionally, but the routine of their day-to-day life will likely change dramatically.

In the wake of losing their parents, a child will face the challenges of accepting new primary caregivers, moving into a new household, changing schools, and others. The child’s new guardian or guardians are tasked with making these transitions are as smooth as possible. But who is appointed to take on this role of the guardian? How is custody determined when a child’s parents die?

The answer to these questions can be complicated and may vary slightly depending on which state you’re in, but the short answer is that the court will appoint a guardian to care for the child. The court follows specified guidelines to pick the guardian, but in the end, the decision will be based on what is in the best interest of the child. Read on for a brief discussion of how custody is determined under Tennessee law when a child loses their parents.

What Is a Guardian?

A guardian is someone who is legally appointed to care for and raise a child. Legally speaking, this person is not awarded “custody” of the child (instead, they enter into guardianship with the minor), but for all practical purposes, the guardian is essentially awarded custody as they are legally obligated to care for the child in the same way that a parent with custody would.

Often the court-appointed guardian will also be named the child’s steward, meaning that they are responsible for managing all financial aspects of the guardianship, but sometimes a third party will be named steward instead.

What’s The Difference Between A Guardian And A Steward?

As noted above, a guardian is someone who cares for a child and is responsible for making daily parenting decisions. These day-to-day decisions encompass a lot and range from setting bedtimes and curfews to deciding where the child will live and which school he/she will attend. A steward, on the other hand, is in charge of managing the child’s estate (and therefore is sometimes referred to as the guardian of the estate).

While most children don’t have considerable assets, ones who lose their parents at a young age sometimes do. When their parents passed on, they may have inherited houses, cars, savings accounts, family heirlooms, stock, etc. Additionally, the child may be entitled to collect life insurance payouts and/or social security benefits. These assets can be considerable, and the court will rarely allow a child/teenager to manage and invest them by themselves.

Instead, the child’s guardian will usually be in charge of managing the estate for them. Whoever ends up managing the estate, whether it be the guardian or a steward, is required to act in the child’s best interest and can be expected to file periodic reports with the court outlining the various income and expenditures of the estate.

How Does the Court Decide Who Will Be Appointed Guardian?

The answer to this question depends a bit on whether or not the parents left behind a will designating a guardian for their child. Ideally, the parents executed a valid mutual will before they passed and named someone who is fit and willing to take care of their child. However, even when this is the case, the court must approve the parents’ choice.

A designation in a will is not legally binding. It only indicates the parents’ preference. Therefore, the court will always pause to consider whether or not naming the designated person guardian would be in the best interest of the child. With that said, the court will almost always abide by the parents’ wishes, unless of course there is some reason why that person is unfit to be a guardian.

If the parents passed away intestate (aka without leaving a valid will behind), then the court will select a guardian using, you guessed it, the best interest criterion. Ideally, this means choosing someone who the child knows very well, can minimize disruption in the child’s life, is willing to care for the child, and can provide a safe and stable home life. Family members are usually preferred, but being related to the child is not a prerequisite.

If Multiple People Are Available to Be Appointed Guardian, Who Will the Court Choose?

Here in Tennessee, we have a statute that outlines a priority order for the court to use when selecting a guardian. This statute is contained in section 34-2-103 of the Tennessee Code and states that subject to the court’s determination of what is in the best interests of the minor, the court will consider the following people for the role of guardian in the following order:

  1. An individual or individual

  2. Designated by the deceased parents in a will or other written document,

  3. Adult siblings,

  4. The closest relative of the child, and

  5. Another individual or individuals

Contact an Experienced Family Law Attorney Today

If you are considering becoming a guardian in Tennessee and have questions about what that entails Shannon A. Jones, Attorney at Law would be happy to answer them for you. When someone close to you passes away, you want to do everything possible to ensure that their children are well cared for and are appointed the best possible guardian. This starts with contacting an experienced family law attorney who can skillfully and compassionately help you navigate the complex waters of family court.

Contact our Memphis office today at (901) 390-9041 and schedule a confidential consultation to discuss your situation and how we can help you during this challenging time.